Michaelmas Term 2006


Week 1
Thu, 12 Oct

Proportionality and the Structure of Constitutional Rights
Kai Moller
DPhil student in Law, Lincoln College, Oxford

There are important differences between reasoning with constitutional rights and reasoning with moral fundamental rights. One of them is that constitutional courts around the world employ a balancing or proportionality test to determine the limits of rights, whereas most philosophers reject such an approach when reasoning with fundamental rights. In his book ‘A Theory of Constitutional Rights’, Robert Alexy has developed a comprehensive conception of constitutional rights, claiming that constitutional rights are optimization requirements and as such necessarily open to balancing. In my presentation, I will review the success of this thesis.


Week 2
Thu, 19 Oct

Natural law under other names:
de nominibus non est disputandum
Cristóbal Orrego Sánchez
Profesor de Filosofía Jurídica y Política, Universidad de Los Andes, Chile

I maintain that Anglo-American analytical jurisprudence in the last half century — since H. L.A. Hart — has retrieved some basic theses in the tradition of natural law theory concerning the relationship between positive and natural law, although not those contents defended by traditional thought. To show this, I suggest attention to four central affirmations in the Thomist interpretation of that tradition: (i) the definition of law as an act of reason; (ii) the immediate relevance of principles of natural law for adjudication; (iii) the simultaneous concurrence of natural and positive law in legal deliberation which justifies a legal decision, and (iv) the non-obligatory nature, or the invalidity in the moral sense, of unjust laws.   Finally, I propose some consequences concerning the manner of making a science of law and legal politics, consequences which have not yet been accepted by most of those who cultivate analytical jurisprudence.


Week 3
Thu, 26 Oct

The Entrenchment of Positive Rights and Courts' Remedial Discretion [download paper]
Kate Hofmeyr
MPhil student, Balliol College, Oxford

It is necessary to examine the remedial power of courts in constitutional rights’ cases in order to assess two purported implications of the entrenchment of positive rights. In the first place, it has been suggested that the entrenchment of positive rights necessarily involves the transfer of ‘the power to govern’ to the courts. On this view, it is a necessary consequence of the entrenchment of positive rights that the courts will be determining the content of legislation. I dispute the necessary connection which this view posits. I argue that the effect of entrenchment is a contingent matter which depends on the remedial approach of the courts rather than the positive (or negative) nature of the duty imposed by the right. To the extent that the remedial power of courts in constitutional rights’ cases is discretionary, there is no necessary relationship between the violation of a positive right and the order which a court will grant.
Appreciating the discretionary character of this power explains why courts need not necessarily be involved in determining the content of legislation when positive rights are breached. However, that such power is discretionary raises a second concern about the consequences of entrenching positive rights. The absence of standards to guide and constrain their remedial power is said to place courts ‘adrift without a compass on the sea of remedial discretion’. Without some restraint on the courts’ exercise of this power, so we are told, the threat exists that in their efforts to remedy positive rights’ violations, the courts will encroach upon the functions of the other branches of government. In order to develop the basis for such restraint and so resist the threat, I propose a central case analysis of discretion and identify the two variables around which the concept is based.


Week 4
Thu, 2 Nov

Self Control in the Modern Provocation Defence
Stephen Shute
Professor of Criminal Law and Criminal Justice, University of Birmingham


Week 5
Thu, 9 Nov

Theorizing Criminal Law Reform [download paper]
Roger A. Shiner
Emeritus Professor of Philosophy, University of British Columbia Okanagan, and HLA Hart Visiting Fellow at the Oxford CEPL.

The traditional or classical picture of criminal law reform has two components. The first component is conceptual. The focus is on legal doctrine as a conceptual structure that must be designed aright — that is, so as to reflect some preferred background set of norms, whether these are viewed as internal or external to law. The second component is empirical. It is understood that criminal law has functions and effects. Criminology or other some social science can provide information about these effects and about the success of criminal law in performing its desired functions. Reform of doctrine can and should be appropriately adjusted on the basis of such empirical information.
Contemporary critical legal and criminological theory repudiate this traditional picture. They repudiate both the ideal of the perfectibility of doctrine and the ideal of value-free social science. Law, it is urged, is no more than a social construction subject to the constraints of power, not of conceptual and empirical purity. Given this diagnosis of criminal law, reform of criminal law via reform of criminal law doctrine is pointless. Criminal law reform has no option but to become radicalized, to serve the interests of the marginalized and the dispossessed.
My focus in this paper is on this latter modality. There is an obvious kernel of truth to the linked ideas that our perceptions of crime in our society are molded by social forces, and that crime does not exist independently of the social structures and processes that help to define and control it. But how do we get from there, can we get from there to the alleged irrelevance of a focus in criminal law reform on doctrinal reform?
I begin the paper by sketching the traditional picture of criminal law reform and the reasons why this picture is said to be unacceptable. I then present what I think can be properly taken from the critical theorists' focus on social construction. I then analyze the arguments for the radicalization of criminal law reform, and consider what more is needed in order to secure the soundness of those arguments from a starting point of the kernel of truth in the `law as social construction' thesis. I end by considering the real extent of the damage done to the traditional picture of criminal law reform by the arguments of criminal law theory and critical criminology.


Week 6
Thu, 16 Nov

Egalitarianism and the Law [download paper]
Claire Grant
Senior Lecturer in Law, Birkbeck College, University of London

This is a paper concerning what Anatole France once called the 'majestic equality' of law. It aims to convince egalitarians that law is worth their sustained attention, and legal theorists that there are distinct and worthwhile questions to be asked concerning socio-economic inequality and the normativity of law. A prima facie sufficient value of the inquiry might be established by saying that whichever poverty line, definitional model or measure one subscribes to, roughly one in four British people is impoverished. The question of whether socio-economic disadvantage raises problems for standard accounts of the normativity of law then ought not to be dismissed as an obviously unavailing argument from marginal cases.


Week 7
Thu, 23 Nov

Polycentricity and Resource Allocation:
A Critique and Refinement [download paper]
Jeff King
DPhil student in Law, Keble College, Oxford

In his posthumously published "Forms and Limits of Adjudication" (1978-9), Lon Fuller put forth the influential view that polycentric disputes are often inherently unsuited to adjudication. Such disputes implicate networks of interlocking interests and relationships, such that a change to one relationship affects a number of other relationships, much like pulling on a single strand of a spider's web. This idea is the most influential objection to involving courts in resource allocation disputes, and its acceptance poses a limitation on the extent to which courts can protect welfare rights in public law. This paper (a) seeks to critique and refine the role played in Fuller's theory about the effects of adjudication on non-represented parties, (b) show that courts do and can legitimately take account of such effects (where relevant) without compromising their integrity, and (c) give guidance on how polycentricity can be used flexibly as a factor conditioning the exercise of judicial deference in resource allocation disputes. The general conclusion is that while Fuller's idea does not justify the non-justiciability doctrine, it is relevant and useful when applied in the stated fashion.


Week 8
Thu, 30 Nov

Empire and the Ends of Human Rights
Costas Douzinas
Professor of Law and Dean of the Faculty of Arts, Birkbeck College, University of London.


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